People v. Prosser

Per Curiam.

Following a bench trial on January 12, 1979, defendant was convicted of possession of heroin, contrary to MCL 335.341(4)(a) MSA 18.1070(41)(4)(a) [repealed by 1978 PA 368, effective September 30, 1978, now MCL 333.7403; MSA 14.15(7403)]. Defendant was, at that time, further convicted as an habitual offender, MCL 769.12; MSA 28.1084, and sentenced to prison for a term of four to eight years. Defendant appeals by right.

The only issue in this appeal is the refusal of the trial court to suppress the heroin taken from defendant’s person. We find that this evidence should not have been admitted and, therefore, reverse.

Defendant was one of three persons traveling eastbound on 1-94 sometime around 1 a.m. in an automobile. Two state police officers noticed the car in which defendant was riding when it suddenly moved across lanes in front of another car, causing the other car to brake. The officers stopped the car and approached the driver, requesting driver’s license and registration. It was uncontroverted that the driver produced the registration and denied having a driver’s license, but one of the officers contended that the driver handed him an Illinois citation in lieu of a license. The officer compared the physical description on the citation to the driver’s appearance and concluded that the citation’s description properly applied to the front seat passenger. At this point, the officer testified, he suspected that at least one, and maybe two of the occupants of the car were lying as to their identities and, therefore, he requested all of them to exit from the vehicle.

Defendant, who had been sitting alone in the back seat, handed the other police officer his driver’s license as he stepped out of the car. When the officer who had initially questioned the driver asked defendant who he was, defendant indicated that the other officer had his license. Apparently, the officer did not refer to this license but determined to make a pat down search of all three individuals for reasons of safety. Upon beginning to search the defendant, he felt a heavy, hard, bulky object in the inside left coat pocket. Reaching into the pocket, the officer felt something soft, like something plastic. He retrieved a plastic baggie from defendant’s pocket and repeated the process five times, resulting in a net find of seven plastic bags containing heroin and marijuana, plus a bundle of cash. Both officers testified that they witnessed no activity on the part of the three individuals that made them suspect that they were armed during the detention.

The trial court upheld the validity of this search on the basis of Terry v. Ohio, 392 US 1, 30; 88 S Ct 1868; 20 L Ed 2d 889 (1968), which states in part that:

"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

The officer who conducted the search of defendant in this case knew that defendant had presented his driver’s license to the other officer before the search was begun. From the testimony presented here, that officer was not "* * * able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous”. Sibron v New York, 392 US 40, 64; 88 S Ct 1889; 20 L Ed 2d 917 (1968). We cannot conceive of a reason for which the officers could have properly detained defendant at the time of this detention had defendant chosen to leave. Therefore, we find that defendant’s conviction must be reversed.